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Adele Ridenour is a litigator whose practice focuses on complex construction, insurance, and design related disputes. She has also developed an extensive background and practice advising educational institutions regarding Title IX, including analysis of Title IX with regard to school facilities and new construction. She handles all aspects of property tax appeals for both residential and commercial owners

Last month’s Oregon Supreme Court decision in Ransom v. Radiology Specialists of the Northwest, 363 Or 552 (2018) will likely have far-reaching impacts on how discovery is conducted in construction defect cases in Oregon. Ransom involved a plaintiff’s claim for alleged medical negligence case against two of the plaintiff’s former radiologists for alleged failure to properly read her imaging scans, which the plaintiff further alleged led to misdiagnosing her cancer as Stage II instead of Stage IV. Id. at 555-56. At issue on appeal was whether the plaintiff’s attorney could seek an answer from the radiologists about their current interpretation of the imaging scans for the plaintiff. Id. During the deposition the radiologists both testified that they did not have an independent memory of interpreting certain scans back at the time they reviewed such scans. Id. When the plaintiff’s attorney thereafter asked the radiologists to review those same scans during their deposition and answer questions about certain markings identified on the scan, defense counsel objected and instructed the radiologists not to answer on the grounds the questions impermissibly sought expert testimony and/or called for information protected by attorney-client privilege. Id. A trial court later concurred with the defense’s objection and prohibited the radiologists from answering the questions about the present-day interpretations of the scans. Id. at 557. On a writ of mandamus filed by the plaintiff, the Oregon Supreme Court reversed the trial court’s decision. Id. at 572-73.

After reviewing the history surrounding Oregon’s prohibition on expert discovery as discussed in two prior cases, Stevens v. Czerniak, 336 Or 393 (2004) and Gwin v. Lynn, 344 Or 65 (2008), the Supreme Court held that “under ORCP 36B, a participating expert can be asked any questions relevant to his or her direct involvement in the events at issue.” Ransom, 363 Or at 567. The Court further found that because the questions did not ask the radiologists to provide information regarding the content of any attorney-client privileged communications, evidentiary rules on attorney-client privilege did not apply. Id. at 572.


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Recently, the Oregon Court of Appeals issued a decision that may have far reaching impacts for communities looking at whether a particular project constitutes a “capital improvement” under their Covenants, Conditions and Restrictions (more commonly known as CC&Rs). The case, known as Eagle-Air Estates Homeowners Ass’n, Inc. v. Haphey, 272 Or App 651 (2015), involved whether an assessment levied by a homeowners association to pay for certain attorney fees incurred in a prior litigation constitutes a “capital improvement,” and therefore a “special assessment” under the HOA’s CC&Rs.

Relying on Black’s Law Dictionary, the Court of Appeals found that the term capital improvement “is commonly understood to mean a permanent structural improvement to property.” (Emphasis added). The Court also cited to Webster’s Dictionary’s definition of “capital expenditure,” as further explanation of the phrase, noting that a “capital expenditure” refers to “long-term additions or betterments properly chargeable to a capital assets account.”

After analyzing the above two definitions, along with the language in the HOA’s CC&Rs regarding other types of specific capital improvements, the Court of Appeals held that “[a]n assessment to pay for attorney fees in litigation. . . is not the type of expense that an ordinary person would regard as a ‘capital improvement’.” As a result, the assessment did not constitute a “special assessment” under the HOA’s CC&Rs and was therefore not subject to any temporal limits as to how long the assessment may be issued.
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On July 22, 2015, the Court of Appeals reaffirmed its prior decision in Alfieri v. Solomon, 263 Or App 494 (2014), petition for review granted, 356 Or 516 (2014) that confidential communications made during and/or in furtherance of a mediation proceeding are protected and shall not be admitted into evidence in any subsequent adjudicatory proceeding under ORS 36.22. Yoshida’s Inc. v. Dunn Carney Allen Higgins & Tongue LLP, 272 Or App 436 (2015). ORS 36.22 states in pertinent part:
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The Oregon Court of Appeals recently issued a surprising decision regarding the ultimate timeline to file a construction defect claim involving a “spec home.” (A “spec home” is a house which a builder or developer constructs not for a specific owner but on speculation that the home will sell to the general public upon completion.)  In Shell v The Schollander Companies, Inc. (September 24, 2014), the Court of Appeals decided that ORS 12.115, as opposed to ORS 12.135, supplies the appropriate ten-year statute of repose for an owner seeking a negligent construction claim where the owner does not have a traditional “construction contract” with the builder.  The plaintiff in Shell was the original owner of the home.  She purchased the property midway through construction from the original developer/builder using a real estate sales agreement to complete the transaction.
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Today the Oregon Court of Appeals handed down a lengthy opinion upholding a money judgment awarded in favor of a judgment creditor in its garnishment action against American Family Insurance Company.  Read about it and get the decision on Ball Janik’s Policyholder Report.

In Oregon, residential owners traditionally have up to ten years from when their home is substantially completed to bring a claim for construction defects.  Less clear is the timeline for townhomes.  Traditionally defect claims involving townhomes in Oregon are brought by a homeowner’s association and on behalf of all owners within the townhome.  This is

In Oregon, the ultimate repose period for residential construction (that is the absolute deadline to file a claim arising out of residential construction) is 10 years from “substantial completion.” ORS 12.135. This ultimate repose period provides certainty for contractors and developers that their potential liability for residential construction will come to an end after 10 years from substantial completion. Substantial completion is the date when the contracting parties in writing have agreed that the project may be used for its intended purpose or, in the event there is no written acceptance, the date the contracting parties accept the project as complete. ORS 12.135(4)(b).
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